The Australian Workers' Union v Contract Resources Pty Ltd
[2022] FWC 748
| [2022] FWC 748 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
The Australian Workers’ Union
v
Contract Resources Pty Ltd
(B2022/254)
| Manufacturing and associated industries | |
| COMMISSIONER HUNT | BRISBANE, 5 APRIL 2022 |
Proposed protected action ballot of employees of Contract Resources Pty Ltd
The Australian Workers’ Union (the AWU, the Applicant) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Contract Resources Pty Ltd (the Respondent). The application was accompanied by a Form F34B statutory declaration of Mr Peter Osborne, AWU Organiser.
Certain employees of the Respondent are presently engaged in enterprise agreement bargaining to replace the Contract Resources Pty Ltd Gladstone Operations Agreement 2017.
The Respondent notified several objections to the application. Accordingly, a hearing by video was convened on 4 April 2022. Mr David Marr, Industrial Officer of the AWU appeared together with Mr Osborne, along with Mr Barry Watson, Senior Industrial Advocate of the AWU. Mr Simon Rogers, Associate with Mills Oakley was granted leave to appear for the Respondent. Mr Rogers was instructed by Ms Adriana Hartcher, General Counsel of the Respondent. Mr Paul Francis, North East Regional Manager of the Respondent also attended the hearing.
Witness statements made by Mr Osborne and Mr Francis were accepted into evidence without the need for cross-examination of the witnesses.
On the basis of the material before me, including the statutory declaration and witness statement of Mr Osborne, setting out the steps taken by the AWU in bargaining with the Respondent and confirming that the AWU has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.
I am satisfied that the AWU has given notice in accordance with section 440 of the Act.
The evidence of Mr Francis revealed that the Respondent provides services to Rio Tinto at the Yarwun alumina and hydrate refinery. The services include the Respondent’s employees using specialised water pumps to push mechanical “pigs” through pipelines in the refinery to clear scale from the inner pipeline wall. If the pipelines are not cleaned to schedule, then they will block up, which causes flow on impacts for other contractors and Rio Tinto, with one outcome being that parts of the refinery would be required to shut down.
A new employee would take approximately 12 months of on-the-job training to be classed as a skilled operator to be able to run the pumps competently and safely. The work is performed regionally.
In addition, any employees who might be required to replace the Respondent’s employees during any protected industrial action would be required to undergo a medical examination in accordance with the requirements of Rio Tinto, satisfy background checks and have face-to-face inductions. Mr Francis’ evidence is that this could not be completed within three working days.
The parties reached a consent position during the hearing regarding the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days for some of the questions within the order. The parties considered it appropriate, having regard to notified stoppages of work and bans on overtime for the Respondent to be provided with five working days’ notice. For the remaining types of industrial action, the Respondent is to be provided with three working days’ notice.
Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.
In my view, specifying a longer period of notice for some of the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the statement of Mr Francis, particularly ensuring, as far as it is practicable, services provided by the Respondent to its client, Rio Tinto do not result in parts of the refinery being required to shut down.
The protected action ballot order will specify a required period of notice of at least five working days for questions 1-11 inclusive. The protected action ballot order will specify a required period of notice of at least three working days for questions 12-16 inclusive.
The Order [PR740041] will be issued concurrently with this Decision.
COMMISSIONER
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